• The complaint
• The Ombudsman’s role and powers
• What I have and have not investigated
• How I considered this complaint
• Relevant legislation, guidance and policy
• What I found
• Action
• Final decision

The Ombudsman's final decision:

Summary: Miss X complained the Council failed to ensure J received suitable education provision over a prolonged period. Miss X also complained the Council failed to make reasonable adjustments so J could access free school meals when unable to attend school. We have found J missed suitable education provision for three academic terms, including during a key transition year, a fault the Council has accepted. The Council has agreed to increase the financial remedy it offered in recognition of the injustice to J. We cannot consider Miss X’s complaint about J’s school meal entitlement, as this is outside the Ombudsman’s jurisdiction. We have not considered complaints about some historic matters. We explain why in our statement.

The complaint

1. Miss X complained the Council:
   • 1. Failed to ensure her child, J, received suitable education provision over a period of two years.
     2. Failed to ensure reasonable adjustments were made so J could access free school meals when unable to attend school for medical reasons.
2. Miss X said the Council and School Z failed in their duties towards J. She said this resulted in J not receiving suitable education provision, affecting J’s educational attainment and wellbeing. Miss X sought a suitable remedy for the claimed injustice.

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The Ombudsman’s role and powers

3. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
5. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
6. We cannot investigate most complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(2), as amended)
7. When considering complaints we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
8. If we are satisfied with an organisation’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)

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What I have and have not investigated

9. I have not investigated a complaint about missed education provision before May 2022. I have not identified a good reason Miss X could not have complained about this sooner. The restriction set out in paragraph 5 applies.
10. I have exercised discretion to consider matters from May 2022 onwards. Even though some of these events occurred over 12 months before Miss X approached the Ombudsman, the Council has accepted fault in this period. I would need to take account of this to reach a view about current matters within our jurisdiction.
11. Parts of Miss X’s complaint concerned the actions and conduct of School Z. The restriction in paragraph 6 applies. These matters are outside the Ombudsman’s jurisdiction to investigate. I have referenced some matters for context where relevant.

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How I considered this complaint

12. I considered information Miss X provided about the complaint.
13. I considered information the Council provided about the complaint.
14. Both Miss X and the Council were able to comment on a draft version of this decision. I considered any comments received before making a final decision.
15. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

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Relevant legislation, guidance and policy

Alternative provision/section 19 duty

16. Councils must arrange suitable education at school or elsewhere for pupils who are out of school because of exclusion, illness or for other reasons, if they would not receive suitable education without such arrangements. The provision generally should be full-time unless it is not in the child’s interests. (Education Act 1996, section 19). We refer to this as section 19 or alternative education provision.
17. This applies to all children of compulsory school age living in the local council area, whether or not they are on the roll of a school. (Statutory guidance ‘Alternative Provision’ January 2013)
18. The courts have considered the circumstances where the section 19 duty applies. Case law has established that a council will have a duty to provide alternative education under section 19 if there is no suitable education available to the child which is “reasonably practicable” for the child to access. The “acid test” is whether educational provision the council has offered is “available and accessible to the child”. (R (on the application of DS) v Wolverhampton City Council 2017)
19. Case law has also held that the duty to make alternative provision does not apply because parents or a child have objections to attending the school. The council has to decide if the education offered is reasonably available and accessible to the child. (R (R) v Kent County Council [2007] EWHC 2135 (Admin))
20. The education provided by the council must be full-time unless the council determines that full-time education would not be in the child’s best interests for reasons of the child’s physical or mental health. (Education Act 1996, section 3A and 3AA)
21. The law does not define full-time education but children with health needs should have provision which is equivalent to the education they would receive in school. If they receive one-to-one tuition, for example, the hours of face-to-face provision could be fewer as the provision is more concentrated. (Statutory guidance, ‘Ensuring a good education for children who cannot attend school because of health needs’)
22. We have issued guidance on how we expect councils to fulfil their responsibilities to provide education for children who, for whatever reason, do not attend school full-time. (Out of school, out of sight? published July 2022)
23. We made six recommendations. Councils should:

• consider the individual circumstances of each case and be aware that a council may need to act whatever the reason for absence (except for minor issues that schools deal with on a day-to-day basis) – even when a child is on a school roll.
• consult all the professionals involved in a child's education and welfare, taking account of the evidence when making decisions.
• choose (based on all the evidence) whether to require attendance at school or provide the child with suitable alternative provision.
• keep all cases of part-time education under review with a view to increasing it if a child’s capacity to learn increases.
• work with parents and schools to draw up plans to reintegrate children to mainstream education as soon as possible, reviewing and amending plans as necessary.
• put the chosen action into practice without delay to ensure the child is back in education as soon as possible.

24. Where councils arrange for schools or other bodies to carry out their functions on their behalf, the council remains responsible. Therefore councils should retain oversight and control to ensure their duties are properly fulfilled.

School meals

25. The Education (Transfer of Functions Concerning School Lunches etc.) (England) (No.2) Order 1999 transferred the duty to provide free school meals for eligible children from councils to the governing bodies of maintained schools.
26. Government guidance, “Free school meals: guidance for local authorities, maintained schools, academies and free schools” sets out that where a child has a disability that affects their ability to eat free school meals, schools must make reasonable adjustments to help that child.

Education, Health and Care (EHC) needs assessments and plans

27. A child or young person with special educational needs may have an Education, Health and Care (EHC) Plan. This document sets out the child’s needs and what arrangements should be made to meet them.
28. Statutory guidance ‘Special educational needs and disability code of practice: 0 to 25 years’ (‘the Code’) sets out the process for carrying out EHC assessments and producing EHC Plans.
29. There is a right of appeal to the Tribunal against a council’s:

• decision not to carry out an EHC needs assessment or reassessment;
• decision that it is not necessary to issue a EHC Plan following an assessment;
• description of a child or young person’s SEN, the special educational provision specified, the school or placement or that no school or other placement is specified in their EHC Plan;
• amendment to these elements of an EHC Plan;
• decision not to amend an EHC Plan following a review or reassessment; and
  • decision to cease to maintain an EHC Plan.

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What I found

Key events

30. Below is a summary of the key events leading to this investigation. It is not an exhaustive chronology of every exchange between parties. Where necessary, I have expanded on some of these events in the “analysis” section of this decision statement.
31. J started Year 7 at School Z in September 2021. I understand J began having attendance issues in November 2021, with frequent but sporadic absences.
32. In May 2022, Miss X sought an EHC needs assessment for J.
33. Miss X said 24 June 2022 marked a period of 15 consecutive days absence for J, following which J had a period of prolonged absence from School Z.
34. In July 2022, the Council declined to carry out an EHC needs assessment for J. Miss X said this was due to School Z not returning the required paperwork.
35. Miss X said she continued to engage with School Z about J’s ongoing absence. Miss X said she met with School Z, agreeing to numerous referrals and measures of support over the next few months. However, Miss X said this support did not materialise.
36. In March 2023, Miss X completed a referral to the Council, seeking assistance. This submission detailed J’s medical diagnoses, as well as the Council’s refusal to complete an EHC needs assessment and the lack of education for J. Miss X said the Council responded and advised her to follow School Z’s complaints procedure.
37. In May 2023, Miss X sought free school meal provision for J. School Z sought the Council’s input on this request. Around the same time, School Z referred J’s continued absence to the Council’s attendance enforcement team. Miss X said this referral focused purely on J’s extended absence, without noting any of the reasons for it.
38. The Council said this referral alerted it to J’s ongoing absence. It said it put in place provision at an engagement centre, referred to in this statement as Placement 1, for two-and-a-half days per week. The Council said J initially engaged well with this provision.
39. Miss X pursued a complaint with School Z about a failure to support J and secure suitable education provision. I understand this led to a meeting with staff and governors at School Z in September 2023. Miss X said at this meeting, she was told the Council had failed to meet its statutory duty to secure suitable education provision for J. She said she was also told Placement 1 was not the correct provision for J.
40. On 14 September 2023, Miss X wrote to the Council to say J would no longer be attending Placement 1, due to what she had been told at the complaint meeting. The Council said it responded to Miss X to clarify she had been incorrectly advised. It said it arranged for management at Placement 1 to meet with Miss X and J to try and alleviate their concerns.
41. The Council said it wrote to Miss X in October 2023 to set out its view that Placement 1, complemented by additional home tuition, was a suitable arrangement for J. It said these arrangements included transport to and from Placement 1, though Miss X disputes this was the case. The Council said it had made clear this provision formed part of a plan to reintegrate J into attending School Z.
42. The Council said it met with Miss X in November 2023 to discuss J’s proposed EHC Plan. The Council said Miss X’s preference was for J to work towards a phased return to School Z. The Council said its view remained Placement 1 and the added home tuition was a suitable alternative provision offer for J.
43. On 20 November 2023, the Council issued J’s final EHC Plan, naming School Z as the setting.
44. In December 2023, the Council said it was told J had been engaging with the home tuition, but not with Placement 1. The Council said Miss X wanted J to have the home tuition alongside 1:1 support at School Z, but School Z would not provide this support. The Council said its view remained Placement 1 was the best available provision and home tuition alone would be insufficient. The Council said it would seek wider views at an upcoming early review of J’s EHC Plan.
45. In January 2024, Miss X complained to the Council:
    • 1. Miss X said School Z and the Council had failed to provide suitable education for around two years. Miss X also said J had not received his free school meal entitlement, as he had been unable to attend School Z due to his disability. She said the Council had declined to offer supermarket vouchers as a reasonable adjustment.
      2. Miss X said the Council’s section 19 duty had been clearly engaged at different points in 2022 and 2023, but the Council had not acted to secure a suitable education for J.
46. The Council responded to Miss X’s complaint in February 2024:
    • 1. The Council said it had been alerted to J’s absence by School Z in May 2023. Prior to this, School Z had managed J’s absences internally and had not brought the matter to the Council’s attention.
      2. The Council set out the arrangements it made at Placement 1. It also set out its efforts to allay Miss X’s concerns following the complaint meeting with School Z. It said its view was the provision at Placement 1 remained suitable. The Council said it was made clear to all parties this provision formed part of a plan to reintegrate J into School Z.
      3. On J’s free school meal entitlement, the Council said School Z had contacted the Council in May 2023 about Miss X’s request. It said the legal advice at the time was that meals had to be provided at the place of education, in this case School Z. The Council said School Z had confirmed a packed lunch would be available for J every day.
      4. The Council did not uphold Miss X’s complaint.
47. Later in February 2024, Miss X escalated her complaint:
    • 1. Miss X set out her disagreement with the Council’s position. She emphasised her understanding of the Council’s section 19 duty. She said this duty should have been engaged since June 2022. She set out how J’s cumulative absences kept increasing, without intervention, from that point. Though many of the concerns raised related to School Z’s conduct, Miss X identified points where the Council had been involved and told about J’s situation. This included the request for an EHC needs assessment in May 2022 and the Council referring Miss X back to School Z’s complaints procedure in March 2023.
      2. Miss X said she had seen correspondence between the Council and School Z regarding her request for supermarket vouchers for free school meals. These exchanges suggested the Council and School Z were unsure how to respond. Miss X said not providing free school meals because of non-attendance due to a disability placed J at a disadvantage. It also caused Miss X to incur an increased financial burden.
      3. Miss X also set out concerns around the early help process, managing attendance, and a failure to properly consult an educational psychologist.
      4. Miss X sought an apology and compensation for J’s missed education. She also sought vouchers to address J’s free school meal entitlement going forward, as well as backdated costs she had incurred when J could not attend School Z.
48. The Council said it attended an early help meeting on 29 February 2024. The Council said J’s reintegration plan was addressed, with some 1:1 tuition and some lessons being held in School Z. The Council said it identified some amendments to J’s EHC Plan were necessary. It issued an amended EHC Plan on 28 March 2024, still naming School Z as the setting.
49. In late April 2024, the Council responded to Miss X’s escalated complaint:
    • 1. The Council said it could not consider School Z’s actions through its complaints procedure. It said School Z had its own procedure for these matters. The Council also said some of Miss X’s complaints were about matters older than 12 months and so were out of time for consideration now.
      2. The Council accepted it had been notified about J’s attendance issues earlier than May 2023. It also accepted its section 19 duty had been engaged since June 2022. The Council proposed a financial remedy of £2,700 in recognition of J’s missed education provision. It also offered £300 in recognition of Miss X’s avoidable distress.
      3. The Council said it had put in place suitable alternative provision from May 2023, which it had adapted where needed. It said it would continue to review the offer to make sure it remained suitable. The Council said J would remain on the roll at School Z and the Council would work with all parties to help J reintegrate into that setting.
      4. The Council set out improvements it had made to its attendance and section 19 procedures, to increase oversight and responsiveness.
      5. Regarding free school meals, the Council said school governing bodies were responsible for providing free meals to eligible pupils on school premises. It said how to provide these meals was a matter for schools. It said the government had issued new guidance about this in March 2024. The Council said it understood School Z would be reviewing its decisions in light of this new guidance.
      6. The Council said Miss X’s other concerns would be matters for School Z to address directly.
50. Miss X responded to the Council:
    • 1. Miss X said J had been without full education provision for five terms, since November 2021. She said the Council should increase its remedy to account for this, and to bring it in line with recommendations made in similar cases investigated by the Ombudsman.
      2. Miss X highlighted two aggravating factors she believed the Council should consider. She said J had been in Year 7 at the time, a key academic transition year. She also said the impact on J had been significant, with J now being behind his peers academically.
51. In May 2024, the Council responded to Miss X:
    • 1. The Council did not agree that it should consider J’s absences from November 2021. It accepted J had absences from this point, but said these absences were non-consecutive and sporadic, and it did not believe its section 19 duty was engaged at that time. The Council said its remedy was intended to recognise three terms of lost provision between June 2022 and May 2023.
      2. The Council did not agree there were aggravating factors in this case. It accepted J had been in Year 7, but said he had already completed his academic transition by that point.
      3. The Council said it believed its proposed remedy accorded with the Ombudsman’s guidance.

Analysis

Education provision – Prior to May 2022

52. For the reasons set out in paragraphs 5 and 9, I have not considered a complaint about missed education provision prior to May 2022.

Education provision – June 2022 to May 2023

53. In its final complaint response, the Council offered a financial remedy of £2,700 in recognition of J’s missed provision for three academic terms between June 2022 and May 2023.
54. I asked the Council how it calculated its proposed remedy. The Council said this was based on a figure of £900 per school term, for three terms of missed education provision between June 2022 and May 2023. It said it offered this after considering the Ombudsman’s Guidance on Remedies.
55. I recognise the Council accepted fault causing injustice. I agree with this conclusion. I also recognise the Council had regard for the Ombudsman’s guidance when considering a financial remedy to address that injustice. However, the Council’s proposed financial remedy is at the bottom range of the Ombudsman’s guidance. The Ombudsman would normally propose a figure like this when a child had received at least some education provision. The Council told me it understood J received no education provision in the three terms between June 2022 and May 2023. I do not consider the Council’s remedy adequately reflects a complete loss of provision for three full academic terms.
56. I note the Council’s assertion that J had already completed his transfer to secondary education. However, it remains the case the Council’s section 19 duty became engaged within the final term of that transfer year. The Ombudsman would consider any education missed at any point during this key academic transfer year to be significant. An authority should appropriately reflect that significance when considering a suitable remedy. The Council also did not address Miss X’s point about the significant impact on J’s educational attainment.
57. For these reasons, I do not consider the Council’s remedy adequately reflects the injustice caused. I have recommended the Council address this.
58. The Council set out the improvements it had made to its service following Miss X’s complaint. It said it had created a new post to support schools across the district and had issued a reminder to schools of the need to promptly escalate attendance concerns to the Council. It said it was conducting termly conversations with schools to review attendance cases. I note the improvements the Council put in place. I would not therefore make any further recommendations on this point.

Education provision – From May 2023

59. I recognise Miss X had concerns about Placement 1, following feedback received in the complaint meeting with School Z. However, as set out in paragraph 19, councils do not have to arrange different provision, solely on the basis a parent objects to the child attending a specific setting. Councils must decide if the education offer is available and accessible.
60. I am satisfied the Council appropriately considered its section 19 duty from this point. It arranged what it considered to be a suitable offer of alternative provision. It clearly communicated its view that Miss X had been misinformed about Placement 1 at the complaint meeting with School Z and sought to allay her concerns. It then adapted the provision offer to make it more accessible, based on the presenting circumstances. It expressed a clear and consistent view the offer was available, accessible, and intended as a way to reintegrate J into the setting named in his EHC Plan.
61. Given the above, I have not found the Council at fault for how it considered its section 19 duty after May 2023.

Free school meals

62. Miss X sought free school meal provision for J in May 2023. I understand the Council and School Z discussed this at the time, with the conclusion then being that a packed lunch would be available for J at School Z every day. Miss X asserted J should receive vouchers as a reasonable adjustment, due to being unable to attend the school setting.
63. In its final complaint response, the Council concluded this was a matter for School Z. It also said School Z would be reviewing its position on this, due to the publication of updated guidance in March 2024. I understand from Miss X the free school meal costs have since been backdated to March 2024 to coincide with the new guidance being published. Miss X believes the costs should be backdated further.
64. Paragraphs 25-26 set out the duty to provide school meals and to make reasonable adjustments where required lies with the school. This duty applies when a child is on the roll at a school, even if they attend an alternative provision setting at the time. As the duty lies with the school, I cannot consider this part of Miss X’s complaint. The actions of schools are outside the Ombudsman’s jurisdiction.

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Action

65. I have had regard for the Ombudsman’s Guidance on Remedies when making the following recommendations.
66. Within four weeks of the final decision being issued, the Council has agreed to:
    • 1. Provide a written apology to Miss X and J for the faults and injustice identified in this statement. The Council should have regard to the Ombudsman’s guidance on “Making an effective apology", set out in our Guidance on Remedies document.
      2. Pay a total of £6,200 in recognition of J’s missed education provision across three academic terms. This would include the £2,700 the Council has already offered, if this has not yet been paid. This recommendation is based on the following:
         1. £1200 in recognition of missed provision for around a half-term in a key academic transition year, in June and July 2022.
         2. £5000 for missed provision across two-and-a-half terms, between September 2022 and May 2023.
      3. Pay Miss X a further £300 in recognition of the avoidable distress she has experienced, if the Council has not already paid this.
67. The Council should provide us with evidence it has complied with the above actions.

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Final decision

68. I have completed my investigation with a finding of fault causing injustice. I have made recommendations to remedy the injustice caused.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman

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